MILLER CHAPTER 27 EMPLOYMENT IMMIGRATION AND LABOR LAW

MILLER CHAPTER 27: EMPLOYMENT, IMMIGRATION, AND LABOR LAW © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

§ 1: EMPLOYMENTAT WILL u Employment relationships have historically been governed by common law doctrine of “employment at will. ” Either party may terminate at any time for any reason, unless contract provides to the contrary. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

EMPLOYMENT AT WILL u Exceptions to the Employment At Will Doctrine: Contract Theory: is there an implied employment agreement? What about oral promises from employer? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

EMPLOYMENT AT WILL u Exceptions to the Employment At Will Doctrine: Tort Theory: wrongful discharge. Public Policy: ‘whistleblower’ claims. • CASE 27. 1 WADDELL V. BOYCE THOMPSON INSTITUTE FOR PLANT RESEARCH, INC. (2012). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

EMPLOYMENT AT WILL u Exceptions to the Employment At Will Doctrine: Wrongful Discharge. Even if employer’s actions do not violate any express employment contract or statute, liability may still attach based on tort theory or agency. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

§ 2: WAGE, HOURS, AND LAYOFFS u Introduction. Davis-Bacon Act: prevailing wage. Walsh-Healey Act: minimum wages. FLSA: an extension of wage and hour regulation to workers in interstate commerce. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

WAGE, HOURS, AND LAYOFFS u Child Labor. FLSA prohibits oppressive child labor practices. Under 14, only allowed to do certain types of work. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

WAGE, HOURS, AND LAYOFFS u Minimum Wages. In 2010, FLSA minimum wage is $7. 25/hour in covered industries. Employers in food or lodging industries can deduct reasonable cost of those services from wages. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

WAGE, HOURS, AND LAYOFFS u Overtime Provisions and Exemptions. Rule: Under FLSA, employees who work over 40 hours/week are entitled to 1. 5 times her hourly wage for those hours worked. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

WAGE, HOURS, AND LAYOFFS u Overtime Provisions and Exemptions: certain employees, e. g. , executive or professional, are exempt from FLSA overtime requirements. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

WAGE, HOURS, AND LAYOFFS u Overtime Provisions and Exemptions: do not apply to manual laborers, nurses, police, firefighters, and other public safety workers, ‘blue collar’ workers. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

WAGE, HOURS, AND LAYOFFS u Layoffs. Worker Adjustment and Retraining Notification Act. • Requires 60 days notice before a ‘mass layoff’ which means loss of: At least 33% of fifty (50) full-time employees at a single job site, or At least 500 full-time employees. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

WAGE, HOURS, AND LAYOFFS u Layoffs. Worker Adjustment and Retraining Notification Act. • Notification Requirements. • Remedies for Violations. • State Laws May Also Require Layoff Notices. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

§ 3: FAMILY AND MEDICAL LEAVE u Coverage and Application: FMLA requires employers with over 50 employees to provide up to twelve (12) weeks unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

FAMILY AND MEDICAL LEAVE u Coverage and Application: Serious injuries or military duty can take up to 26 weeks. u Benefits and Protections. Employer must continue worker’s health care on same terms. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

FAMILY AND MEDICAL LEAVE u Benefits and Protections. Employee must be restored to position upon return to work (unless it’s a “key” employee). u Violations. Damages, Job Reinstatement, and Promotion. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

§ 4: WORKER HEALTH AND SAFETY u The Occupational Safety and Health Act. (OSHA). The fundamental federal law aimed toward safety in the workplace. Enforcement is by OSHA, NIOSH, and the OSHRC. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

§ 4: WORKER HEALTH AND SAFETY u State Laws. Workers’ Compensation Establish procedures for compensating workers injured on the job. Instead of suing for injuries, a worker is compensated. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

WORKER HEALTH AND SAFETY u State Laws. Workers’ Compensation Requirements. • Existence of employment relationship. • Accidental injury that occurred on the job or in course of employment. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

WORKER HEALTH AND SAFETY u State Laws. Workers’ Compensation Versus Litigation. • Bars plaintiff from suing, but also bars defendant/employer from any applicable defenses. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

§ 5: INCOME SECURITY u Social Security. Portion of income (whether paycheck or self-employed) goes to FICA (Federal Insurance Contributions Act). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

INCOME SECURITY u Medicare. Federal government health- insurance program for people 65 years of age, and for those under 65 who are disabled. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

INCOME SECURITY u Private Pension Plans. ERISA does not require employers to setup pension plans, but provides rules on management and investment. Vesting. Investment of Funds. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

INCOME SECURITY u Unemployment Insurance. FUTA created state-run system that provides unemployment compensation for those losing jobs. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

INCOME SECURITY u COBRA provides a federal right to continued health insurance. Procedures: worker has 60 days to decide. Payment: COBRA is not free, payments depending on conditions and worker status. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

INCOME SECURITY u Employer-Sponsored Health Care Plans. Group HIPAA: • Does not require health insurance but it does establish requirements for health plans. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

INCOME SECURITY u Employer-Sponsored Health Care Plans. Group HIPAA: • Strictly limits employer’s ability to exclude pre-existing conditions. • Plus, restricts manner of disseminating patient information. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

INCOME SECURITY u Affordable Care Act (Obamacare). Employers with >50 employees are required to offer healthinsurance benefits. Businesses may be eligible for up to 35% tax credits. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

INCOME SECURITY u Affordable Care Act (Obamacare). “ 50/30” Rule and Fines. Employers will be fined only if employees receives a federal subsidy to buy health insurance via the state insurance exchange. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

§ 6: EMPLOYEE PRIVACY RIGHTS u Electronic Monitoring. More than half of employers use some sort of electronic monitoring of employees. Employee Privacy Protection: is there an employee expectation of privacy? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

EMPLOYEE PRIVACY RIGHTS u Electronic Monitoring. ECPA: “business-extension exception” allows employer to monitor. What about stored communications? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

EMPLOYEE PRIVACY RIGHTS u Other Types of Monitoring. Lie-Detector Tests. Drug Testing. • Public v Private Employers. • CASE 27. 2 NASA V. NELSON (2011). Genetic Testing. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32

§ 7: IMMIGRATION LAW u ICRA. Makes it illegal to hire, recruit, or refer for a fee someone not authorized to work in the U. S. I-9 Employment Verification: for new hires. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 33

IMMIGRATION LAW u ICRA. Enforcement: by I. C. E. Penalties. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 34

IMMIGRATION LAW u The Immigration Act. Places caps on the number of visas that can be issued to immigrants every year. I-551 Alien Registration Receipts. The H-1 B Visa Program. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 35

IMMIGRATION LAW u The Immigration Act. Labor Certification. H-2, O, L, and E Visas. u State Immigration Legislation. Arizona “Show Me Your Papers” statute was upheld by U. S. Supreme Court. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36

§ 8: LABOR UNIONS u Federal Labor Laws. Norris-La. Guardia Act: protects peaceful strikes by limiting the injunction powers of federal courts. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37

LABOR UNIONS u Federal Labor Laws. National Labor Relations Act: establishes the right of workers to strike and engage in collective bargaining. Establishing NLRB. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 38

LABOR UNIONS u Federal Labor Laws. Labor Management Relations Act: prohibits certain unfair union practices such as closed shops. Allowed individual states to pass right-to-work laws. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 39

LABOR UNIONS u Federal Labor Laws. Labor-Management Reporting and Disclosure Act: hot cargoagreements, secondary boycotts. • CASE 27. 3 Services Employees International Union v. National Union of Healthcare Workers (2013). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 40

LABOR UNIONS u Union Organization. First step, majority of workers sign authorization cards. Union Elections: can be held only if it can be shown that at least 30% of the workers support the union and will be represented. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 41

LABOR UNIONS u Union Organization. Union Election Campaigns: NLRB regulates rights and obligations of employers and workers in the election process. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 42

LABOR UNIONS u Union Organization. Each side can pursue their objectives, but cannot interfere, beyond certain limits, in the other’s activities. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 43

LABOR UNIONS u Collective Bargaining. Process by which management and labor negotiate the terms and conditions of employment. The NLRB will certify an exclusive bargaining agent for labor. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44

LABOR UNIONS u Collective Bargaining. Both labor and management must bargain in good faith, but the law does not require that they reach an agreement. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45

LABOR UNIONS u Strikes. The Right to Strike. Most are “economic strikes. ” • Picketing is protected by First Amendment. • Employers have the right to hire substitutes to replace striking workers. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 46

LABOR UNIONS u Strikes. Illegal Strikes: • Violent strikes. • Massed picketing. • Sit-down strikes. • No-strike clause. • Secondary boycotts. • Wildcat strikes. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 47

LABOR UNIONS u Strikes. Strikers’ Rights after a Strike Ends. • In an ‘economic strike’, if employer has hired replacements it does not have to rehire the strikers. If no replacements have been hired, then employer must rehire economic strikers. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 48

LABOR UNIONS u Strikes. Strikers’ Rights after a Strike Ends. • In an ‘unfair labor strike’, different rules apply but an employer must give the strikers back their jobs after the strike is over. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 49

LABOR UNIONS u Lockouts. Occurs when the employer shuts down the plant to prevent employees from working. Usually used when employer believes a strike is imminent. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 50